Citation Nr: 18118257 Decision Date: 07/12/18 Archive Date: 07/12/18 DOCKET NO. 14-07 326A DATE: July 12, 2018 ORDER Service connection for headaches is denied. An initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. The appeal on the issue of entitlement to an evaluation in excess of 40 percent for fibromyalgia has been withdrawn and is dismissed. The appeal on the issue of entitlement to an initial evaluation in excess of 50 percent for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), has been withdrawn and is dismissed. The appeal on the issue of entitlement to an initial evaluation in excess of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period prior to December 7, 2015, has been withdrawn and is dismissed. An evaluation of 100 percent for the complete removal both ovaries and the uterus, in lieu of her currently assigned evaluation of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period from December 7, 2015, to March 7, 2016, is granted, subject to the laws and regulations governing the payment of VA benefits. An evaluation of 50 percent, but not in excess thereof, for the complete removal both ovaries and the uterus, in lieu of her currently assigned evaluation of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period from March 7, 2016, is granted, subject to the laws and regulations governing the payment of VA benefits. Special monthly compensation under 38 U.S.C. § 1114(k) for the period from December 7, 2015, is granted, subject to the laws and regulations governing the payment of VA benefits. FINDINGS OF FACT 1. The Veteran’s headaches are not related to service, except for those headaches which are already compensated for as part of her service-connected fibromyalgia. 2. The Veteran’s GERD is not productive of persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm pain or shoulder pain, productive of considerable impairment of health; of symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or of other symptoms combinations productive of severe impairment of health. 3. At her April 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal of the issue of entitlement to an evaluation in excess of 40 percent for fibromyalgia. 4. In an April 2018 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal of the issue of entitlement to an initial evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD. 5. In an April 2018 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal of the issue of entitlement to an initial evaluation in excess of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period prior to December 7, 2015. 6. On December 7, 2015, the Veteran’s uterus and both ovaries were surgically removed due to her polycystic ovarian syndrome. 7. On March 7, 2016, three months had elapsed since the Veteran’s uterus and both ovaries were surgically removed due to her polycystic ovarian syndrome. 8. Since December 7, 2015, the Veteran has experienced a service-connected anatomical loss of both ovaries. CONCLUSIONS OF LAW 1. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.14, 4.71a, Diagnostic Code 5025 (2017). 2. The criteria for an initial evaluation in excess of 10 percent for GERD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). 3. The criteria for withdrawal of the appeal on the issue of entitlement to an initial evaluation in excess of 40 percent for fibromyalgia have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal on the issue of entitlement to an initial evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD, have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 5. The criteria for withdrawal of the appeal on the issue of entitlement to an initial evaluation in excess of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period prior to December 7, 2015, have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 6. The criteria for an evaluation of 100 percent for the complete removal both ovaries and the uterus, in lieu of her currently assigned evaluation of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period from December 7, 2015, to March 7, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.116, Diagnostic Code 7617 (2017). 7. The criteria for an evaluation of 50 percent, but not in excess thereof, for the complete removal both ovaries and the uterus, in lieu of her currently assigned evaluation of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period from March 7, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.116, Diagnostic Code 7617 (2017). 8. The criteria for special monthly compensation under 38 U.S.C. § 1114(k), for the period from December 7, 2015, have been met. 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to July 1995. This appeal is before the Board of Veterans’ Appeals (Board) from April 2011 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. 1. Entitlement to service connection for headaches The Veteran claims service connection for headaches. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service treatment records reflect that in January 1992 the Veteran reported nausea, dizziness, and a slight headache. She was diagnosed with a viral syndrome versus gastroenteritis. In September 1992 she reported headache and nausea over the prior week and was diagnosed with headaches. Three weeks later she reported body aches, nonproductive cough, sore throat, nausea, and congestion headaches. She was diagnosed with an upper respiratory infection or a viral syndrome. In October 1992 she reported headaches among other cold symptoms and was diagnosed with an upper respiratory infection. In March 1993 she reported headache, fever, chills, nausea, and nonproductive cough for two days. She was diagnosed with a viral syndrome and tested to rule out malaria. Three days later she denied upper respiratory infection symptoms but still reported an intermittent headache. In January 1994 while pregnant she requested Tylenol for headaches and was instructed to call her obstetrician if they persisted. No abnormality was noted at her June 1995 separation examination, but in the accompanying reported of medical history she reported a history of frequent or severe headaches which she self-medicated. At an October 2000 VA examination for abdominal pains, the examiner noted that the Veteran’s pains appeared to be part of a much larger picture, including hip pain, lower back pain, upper back pain, shoulder pain, arm pain, neck pain, and headaches. VA treatment records reflect that in September 2002 the Veteran reported that she typically got headaches and blurry vision prior to her other fibromyalgia symptoms. At a December 2002 VA examination for fibromyalgia, the Veteran reported that she gets headaches when she sits. VA treatment records reflect that in August 2003 the Veteran reported migraines every other day relieved by medication. In October 2003 she was diagnosed with migraine headaches triggered by increased stress at work. In June 2004 she reported migraines often resulting in significant vomiting. In March 2007 she reported that she was on medication prescribed by an outside neurologist. She continued treatment thereafter. Private treatment records reflect that in June 2006 the Veteran consulted with a neurologist due to headaches which she had had on and off for four years. Headaches tended to be mainly premenstrual, but she reported that she always had “some kind of headache” on a daily basis. Her neurologist characterized it as not a true migraine and diagnosed premenstrual migraines with some muscle contraction components as well. In August 2006 her neurologist noted that her MRI was normal. Her medication was increased. In November 2006 she reported that her medication mostly got rid of the headaches with the occasional breakthrough headache. She was prescribed additional medication in October 2007. In July 2009 she reported headaches which sounded migrainous to her neurologist. She reported 3 headaches per month associated with nausea, vomiting, and light and noise sensitivity. Her medication was increased. In October 2009 she reported that she was still having some headaches throughout most of the month, and her medication was increased further. In January 2010 she reported the occasional breakthrough headache which sometimes responds to additional medication. In October 2010 she reported severe bifrontal headaches with aching pain associated with increased sensitivity to smell and light along with nausea. She was prescribed medication to be used prophylactically to prevent menstrual migraines. In June 2011 she reported headaches still present but not as frequent as before. At a June 2011 private evaluation, the Veteran reported bifrontal headaches, like a sinus headache. She reported chronic headaches with severe headaches occurring as often as three times per month. She reported that some headaches cause photophobia. An MRI showed no sinus disease but there was a meningioma. She was diagnosed with chronic headaches. Private treatment records reflect that in March 2013 the Veteran’s neurologist instructed her to use different medication for her migraines and her occasional muscle contraction headaches. A March 2017 MRI showed an extraaxial dural mass consistent with a meningioma. An April 2017 MRV showed no evidence of dural venous sinus thrombosis. At her April 2018 hearing, the Veteran reported that her migraines were related to a brain tumor on her MRI. She stated that her migraines began in service but were not properly diagnosed until she got out. The Board finds that the evidence weighs against a finding that the Veteran’s headaches are related to service, to the extent that they are not already compensated for by her fibromyalgia rating. While at her April 2018 hearing she stated that her migraines began in service, at her initial private neurological consultation in June 2006 she reported that she had been experiencing these headaches for four years. Her statement to her neurologist is consistent with her VA treatment records, which show a diagnosis of migraines as far back as August 2003. Prior to that date, headaches were generally reported in conjunction with other symptoms. The Veteran was not diagnosed with migraine headaches in service or at any time prior to 2003. While she experienced headaches in service, they were in conjunction with other symptoms. They were not diagnosed as migraines and there is no indication that they are not associated with fibromyalgia, which arose in service. Headaches are part of the criteria for the Veteran’s current 40 percent evaluation for fibromyalgia. 38 C.F.R. § 4.71a, Diagnostic Code 5025. Thus, separate service connection based on headaches related to fibromyalgia would be unlawful pyramiding. 38 C.F.R. § 4.14. Furthermore, the Veteran’s private neurologist noted explicitly that the Veteran experienced both migraine and non-migraine headaches. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s headaches are related to service, to the extent that they are not already compensated for by her fibromyalgia rating. Service connection is therefore denied. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 2. Entitlement to an initial evaluation in excess of 10 percent for GERD The Veteran seeks an increase to her evaluation for GERD. The Veteran’s GERD is currently rated by analogy as a hiatal hernia under 38 C.F.R. § 4.114, Diagnostic Code 7346. Under this code, a maximum 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or for other symptoms combinations productive of severe impairment of health. A 30 percent rating is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm pain or shoulder pain, productive of considerable impairment of health. Her current 10 percent rating is warranted for two or more symptoms for the 30 percent evaluation of less severity. The Veteran underwent a VA examination in October 2010. She denied symptoms of heartburn or indigestion. She reported that a recent private upper gastrointestinal scope diagnosed gastritis. She reported nausea and vomiting several times daily. There was no history of hospitalization, surgery, trauma, neoplasm, dysphagia, esophageal distress, heartburn, pyrosis, regurgitation, hematemesis, melena, or esophageal dilation. On examination there were no signs of anemia, weight loss, or malnutrition. She was diagnosed with GERD due to gastroenteritis. VA treatment records reflect that in December 2010 the Veteran reported that her main problem was nausea and vomiting. She was diagnosed with GERD and her medication was adjusted. In June 2011 she reported she was still symptomatic. In November 2011 she reported persistent nausea and vomiting. In October 2012 she reported that despite her vomiting she had gained weight. In January 2015 she reported continued nausea. At her April 2018 hearing the Veteran reported taking daily nausea medication to prevent her from vomiting. She stated it was ongoing but there was not much to say about it. The Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran’s GERD. Higher ratings are available for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm pain or shoulder pain, productive of considerable impairment of health; for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or for other symptoms combinations productive of severe impairment of health. The evidence weighs against such manifestations. Her VA examination, treatment records, and hearing testimony consistently show no symptoms beyond persistent nausea and vomiting. Such a description of her symptoms is precisely what is contemplated by the criteria for her current 10 percent rating, i.e., two or more symptoms for the 30 percent evaluation of less severity. There is no evidence of hospitalization, surgery, trauma, neoplasm, dysphagia, esophageal distress, heartburn, pyrosis, hematemesis, melena, or esophageal dilation. For these reasons, the Board finds that an evaluation in excess of 10 percent is not warranted for GERD. 3. Entitlement to an evaluation in excess of 40 percent for fibromyalgia 4. Entitlement to an initial evaluation in excess of 50 percent for an acquired psychiatric disability, to include PTSD 5. Entitlement to an initial evaluation in excess of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period prior to December 7, 2015 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.204. At her April 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to an increased evaluation for fibromyalgia. In a separate April 2018 statement, she withdrew her appeal on the issues of entitlement to increased ratings for PTSD and polycystic ovarian syndrome. As to these issues there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. 6. Entitlement to an evaluation in excess of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period from December 7, 2015, to March 7, 2016 7. Entitlement to an evaluation in excess of 30 percent for polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia, for the period from March 7, 2016 In December 2015, the Veteran submitted a claim for service connection for a hysterectomy secondary to her polycystic ovarian syndrome with dysmenorrhea and menometrorrhagia. In a March 2016 rating decision, the RO in San Diego, California, declined to address this issue, considering it part of her increased rating claim on appeal. Because the Veteran has treated this as a separate issue from her increased rating claim, the Board does not construe her April 2018 withdrawal to apply to this aspect of her increased rating claim. Her claim for all periods after December 7, 2015, is therefore still before the Board. For the period from December 7, 2015, the Veteran is currently assigned a 30 percent rating for diseases of the ovary under 38 C.F.R. § 4.116, Diagnostic Code 7615. Her current 30 percent rating is the maximum schedular evaluation under this code and is warranted for symptoms not controlled by continuous treatment. Complete removal of the uterus and both ovaries is rated under 38 C.F.R. § 4.116, Diagnostic Code 7617. Under this code, a 100 percent rating is warranted for three months after removal, and a 50 percent rating is warranted thereafter. VA treatment records reflect that on December 7, 2015, the Veteran underwent a laparoscopic supracervical hysterectomy, bilateral salpingo-oophorectomy, and lysis of adhesions. In February 2016, a VA examiner explained that the objective evidence in the medical records shows that the surgery was due to her polycystic ovarian syndrome. There is no evidence in the record to contradict this opinion. The Board finds that the evidence establishes that this surgery removing the uterus and both ovaries was due to the Veteran’s service-connected ovarian syndrome. Her 30 percent rating under Diagnostic Code 7615 must therefore be replaced with a 100 percent rating under Diagnostic Code 7617 for the period from December 7, 2015, to March 7, 2016, and with a 50 percent rating under Diagnostic Code 7617 for the period from March 7, 2016. The Board notes that 50 percent is the maximum schedular rating for the period beyond three months after the surgical removal of the uterus and ovaries. 8. Entitlement to special monthly compensation under 38 U.S.C. § 1114(k) for the period from December 7, 2015 Although the issue of entitlement to special monthly compensation was not specifically raised by the Veteran, such claims are considered components of any disability rating claim, and must be addressed where, as here, the evidence demonstrates entitlement. Akles v. Derwinski, 1 Vet. App. 118 (1991) (no requirement that veteran must specify with precision statutory provisions or corresponding regulations under which he is seeking benefits). Special monthly compensation is available for the loss or loss of use of a creative organ. Loss of a creative organ may be shown by acquired absence of one or both ovaries. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a)(1). The Board notes that the rating criteria for 38 C.F.R. § 4.116, Diagnostic Code 7617, specifically instruct that special monthly compensation is to be considered in addition to a schedular rating. As discussed above, on December 7, 2015, the Veteran underwent surgery to remove both ovaries due to her service-connected disability. Special monthly compensation under 38 U.S.C. § 1114(k) is therefore warranted from that date. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel